Chief Justice Robots

Say an AI program someday passes a Turing test, because it can con-verse in a way indistinguishable from a human. And say that its develop-ers can then teach it to converse—and even present an extended persua-sive argument—in a way indistinguishable from the sort of human we call a “lawyer.” The program could thus become an AI brief-writer, ca-pable of regularly winning brief-writing competitions against human lawyers. Once that happens (if it ever happens), this Essay argues, the same technology can be used to create AI judges, judges that we should accept as no less reliable (and more cost-effective) than human judges. If the software can create persuasive opinions, capable of regularly winning opinion-writing competitions against human judges—and if it can be adequately protected against hacking and similar attacks—we should in principle accept it as a judge, even if the opinions do not stem from human judgment

#WeToo

The #MeToo movement has caused a widespread cultural reckoning over sexual violence, abuse, and harassment. “Me too” was meant to express and symbolize that each individual victim was not alone in their experiences of sexual harm; they added their voice to others who had faced similar injustices. But viewing the #MeToo movement as a collection of singular voices fails to appreciate that the cases that filled our popular discourse were not cases of individual victims coming forward. Rather, case after case involved multiple victims, typically women, accusing single perpetrators. Victims were believed because there was both safety and strength in numbers. The allegations were not by a “me,” but far more frequently by a “we.” The #MeToo movement is the success of #WeToo. This Article assesses the implications of #WeToo for criminal law. #WeToo—multiple allegations against individual perpetrators—brings some grounds for hope about the criminal justice system’s treatment of sexual assault. Currently, victims face unwarranted obstacles with respect to police, prosecutors, and juries, but #WeToo may spur better policing, encourage prosecution, and counteract a jury’s credibility discounting of an individual victim’s testimony. However, there are also significant reasons to worry. The rise of #WeToo risks frustrating jury expectations due to a narrative mismatch between the media’s coverage of sexual violence and the typical facts on the ground, the imposition of a de facto corroboration requirement wherein individual victims cannot attain justice unless another person was victimized, and the perversion of fairness commitments due to the accused through permissive joinder rules and sloppy or unjustified evidentiary arguments. This Article grapples with these impacts that #WeToo will have on the criminal justice system, including the effects of #WeToo’s intersection with racial injustices—the over-policing of Black men and under-protection of Black women

Forgetting Freud: The Courts\u27 Fear of the Subconscious in Date Rape (and Other) Criminal Cases

Courts too often show a reluctance to learn the lessons taught by social science in criminal cases, especially where subconcious processes are involved. The subconscious is seen as rarely relevant and, in the unusual cases where it is relevant, it is viewed as a disease commandeering the conscious mind and thus helping to exculpate the accused. Drawing on the example of forensic linguistics in date rape cases as illustrative of a broader phenomenon, this article argues that the courts\u27 misuse of social science stems from fear and misunderstanding of the workings of the subconscious mind. Accordingly, the piece contrasts the folk subconscious vision embraced by the courts -- one in which the conscious is our true self -- with the scientific subconscious -- one in which the conscious and subconscious minds reciprocally interact in a single person. The piece further examines the implications of each view for the substantive criminal law and the law of evidence. The article also explores the consequences of the theory of memes -- ideas as viruses -- for free will and criminal culpability. The article finally examines the political implications of each view concerning the nature of the citizen in a modern republic and concludes with suggestions for change